The Cost of Being an Enemy of the State: Why Pres. Biden Must Grant a Blanket Pardon to All Those on Trump’s Enemies List

In 1987, after a trial lasting almost nine months, Raymond James Donovan, who had been U.S. Secretary of Labor in the Regan Administration, was acquitted of defrauding the New York State Transit Authority by a Bronx jury.[1] When he left the courtroom, Donovan went before the press and famously stated, “Which office do I go to get my reputation back.”[2]

In 1998, Mike Espy, U.S. Secretary of Agriculture under Bill Clinton, was prosecuted by an independent counsel for accepting unlawful gratuities and he too was found not guilty. Despite the jury’s repudiation of the government’s case, the prosecutor stated that “the actual indictment of a public official may in fact be as great a deterrent as a conviction.”[3]

Yesterday, two of the most highly regarded white-collar lawyers in the country told me that a government official or public figure being investigated by a federal grand jury could be looking at attorneys’ fees in the range of seven figures.

Donald Trump has accused dozens of present and former government officials, public figures, and journalists of committing crimes and has threatened to have them prosecuted if he were elected president.[4] Kash Patel, Donald Trump’s nominee to run the Federal Bureau of Investigation, has an extensive list of people he wants to see prosecuted that now exceeds the 60 people he initially mentioned in his 2023 book.[5] In this week’s Senate confirmation hearings, Pam Bondi, insisted that there would be no political prosecutions when she is Attorney General,[6] but her future boss has not been equivocal about what he wants her to do.

It does not matter that none of the people mentioned has committed a crime. It does not even matter that there is very little likelihood that federal prosecutors will actually seek indictments of those who have opposed Trump politically or were members of what Trump and his followers call the “deep state.”

What matters is that the cost of an investigation alone: whether measured in legal fees, the loss of employment with the government or a business seeking favor with the administration, or the emotional toll on the persons under investigation and their families, is enough to destroy lives and intimidate those who would otherwise stand up to, and in the way of, the incoming administration’s efforts to radically change our nation.

I don’t believe that Pam Bondi would permit the Department of Justice to engage in a witch hunt. But if Trump insists that she investigate those who have been named as enemies of the state, and she refuses, as did Trump’s previous Attorney Generals, Jeff Sessions and Bill Barr, she will be forced out, voluntarily or involuntarily, the way they were. But this time, Trump will be able to appoint an acting Attorney General who will do whatever he pleases, and he will have no fear that there will be mass resignation by the senior staff at DOJ because those currently holding these positions will already have been replaced by Trump loyalists. And that acting Attorney General could very well be Kash Patel.

Various law firms with white-collar practices in Washington, D.C., have discussed the possibility of representing persons under investigation or being prosecuted pro bono. As always, however, the devil is in the details.

Those on either end of the financial spectrum will not likely get the services of these law firms. The well-off will have to pay the freight for their defense. Public servants and journalists of modest means will be left to the Federal Public Defender for their defense. These law firms will wait to provide their services to those who would otherwise face bankruptcy if they had to retain private counsel. BUT NOTE, the Federal Public Defender is not available to persons under investigation. Their services are only available to persons who have been charged with a crime. By then those targeted by the Administration will have had their livelihoods and reputations destroyed.

In the United States, an autocratic government does not need to disappear its enemies to maintain power—the threat of prosecution or protracted litigation is sufficient to cow the opposition.

Which brings us to President Biden. Maybe he has already decided to pardon some people before Trump’s inauguration on Monday. And maybe he has agreed not to pardon those who do not want a pardon because they have not committed a crime and do not want to give anyone ammunition to claim otherwise. He may even be concerned about giving out blanket pardons to lesser-known figures who could possibly have committed some offense.

But what he should be thinking about is the impact a witch hunt could have on the country. No, President Biden should grant a blanket pardon to the largest number of potential targets, whether they want to be pardoned or not, clearly stating why he is doing so, which is that in this case and at this time, granting these pardons is in the interests of preserving our democracy.

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[1] George Church, Give Me Back My Reputation, Time, June 8, 1987, https://time.com/archive/6709403/give-me-back-my-reputation/?form=MG0AV3

[2] David Wildstein, Labor Leader: Raymond Donovan, U.S. Secretary of Labor under Regan [dies], New Jersey Globe, Sept. 6, 2021, https://newjerseyglobe.com/labor/labor-leader-raymond-donovan-u-s-secretary-of-labor-under-reagan/?form=MG0AV3

[3] Neil Lewis, Espy Is Acquitted on Gifts Received While in Cabinet, New York Times, Dec. 3, 1998, https://www.nytimes.com/1998/12/03/us/espy-is-acquitted-on-gifts-received-while-in-cabinet.html

[4] Josh Gerstein, Trump promised to get revenge. Here are his targets. Politico, November 6, 2024, https://www.politico.com/news/2024/11/06/trump-retribution-enemy-list-00187725?form=MG0AV3

[5] Sornam Sheth, Full List of Kash Patel’s ‘Government Gangsters’ Who Could Be Targeted, Newsweek, Dec. 2, 2024, https://www.newsweek.com/kash-patel-list-officials-targeted-fbi-doj-trump-1994417?form=MG0AV3; David Gilmour, ‘Government Gangsters’: Trump’s FBI Director Pick Kash Patel’s 60 Name List of ‘Deep State’ Enemies, Mediaite, Dec. 3, 2024, https://www.mediaite.com/news/government-gangsters-trumps-fbi-director-pick-kash-patels-60-name-list-of-deep-state-enemies/?form=MG0AV3

[6] Graham Kates, Bondi fields questions on Trump, DOJ independence at confirmation hearing, CBS News, https://www.msn.com/en-us/news/politics/pam-bondi-trumps-attorney-general-pick-to-appear-for-confirmation-hearing/ar-AA1xeLA7?form=MG0AV3.